Madras High Court
The Senior Regional Manager vs The Appellate Authority Under on 20 January, 2023
W.P.(MD) No.4862 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 20.01.2023
CORAM
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
W.P.(MD) Nos.4538 to 4544/2022, 5472/2020 and 8205/2020
and WMP(MD) Nos.3811, 3814,4772/2020, 3816/22, 7618/2020,
14117/2022, 3805/2022, 3806/2022, 3117/2022, 3809/2022 and 3812/2022
W.P.No.4538/2020
The Senior Regional Manager,
Tamilnadu Civil Supplies Corporation,
Thanjavur Region,
Thanjavur District. ... Petitioner
-vs-
1.The Appellate Authority under
the Payment of Gratuity Act/
The Joint Commissioner of Labour,
Office of the Joint commissioner of Labour,
Trichy.
2.The Controlling Authority Under
the Payment of Gratuity Act/
The Assistant Commissioner of Labour
Trichy.
3.M.Balasubramanian ... Respondents
Prayer:- Writ Petition is filed under Article 226 of the Constitution of India praying for
issuance of Writ of Certiorari to call for the records pertaining to the impugned orders
passed by the 1st respondent in P.G.A.No.3 of 2020 dated 27.07.2021 confirming to
the order passed by the 2nd respondent in P.G.No.82 of 2018 dated 04.10.2019 and
quash the same.
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For Petitioner : Mr.G.Mohankumar
For Respondents : Mrs.K.Christy Theboral for R1 & R2
Additional Government Pleader
Mr.S.Arunachalam for R3
(for both cases)
COMMON ORDER
In these writ petitions, challenge is made to the order of the 1st
respondent dated 27.07.2021, confirming the order of the 2nd respondent
dated 04.10.2019.
2. The case of the petitioner is that the third respondent/employee was
appointed as a temporary employee on 10.11.1985 and his scale of pay was
fixed immediately after appointment. On attaining the age of
superannuation, the gratuity amount was paid to him by calculating the
service rendered by him. However, the employee filed a petition before the
second respondent along with others seeking gratuity with a condone delay
petition. However, without deciding the condone delay application, in
respect of some of the employees, the original authority allowed the
applications along with the main claim and granted the relief as sought for
by them and the same was also confirmed by the appellate authority.
Challenging both the orders, the present petitions have been filed.
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3. The learned counsel for the petitioners would submit that the
private respondents were only engaged as temporary seasonal employees on
consolidated pay in the Tamil Nadu Civil Supplies Corporation. He would
further submit that their employment is seasonal one and that there is no
continuity of service from 1985. Subsequently, the employees were
appointed in time scale of pay in different cadres and they have retired on
attaining the age of superannuation. Since they have not completed 240 days
in a calender year, they are not entitled for gratuity and the gratuity petition
filed by them are not maintainable.
4. His further contention is that the original authority as well as the
appellate authority passed the orders mainly on the ground that as per
Section 2A of the Industrial Disputes Act, where an employee employed in a
seasonal establishment is not in continuous service within the meaning of
clause (1) for any period of one year or six months, he shall be deemed to be
in continuous service under the employer for such period if he has actually
worked for not less than 75% of the number of days on which the
establishment was in operation during such period. In the present, when they
rendered service only for the seasonal period, the original and appellate
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W.P.(MD) No.4862 of 2020
authority concurrently held that the employees are entitled for gratuity and
allowed their case, which is non-est in the eye of law and accordingly, prays
for allowing the writ petitions.
5. Per contra, the learned counsel for the employees would submit
that the issue arises in the writ petition is no longer res integra, which has
been decided by this Court, in W.P.Nos.16007 to 16011 of 2013 and this
Court dismissed the writ petitions on 30.09.2013 and held in favour of the
employees, which went on appeal and the order of the learned single Judge
was confirmed by this Court in WA Nos.353 to 357 of 2014 vide judgment
dated 12.03.2018. In view of the law laid down by the Division Bench of
this Court, these writ petitions deserve to be dismissed.
6. Heard the learned counsel for the petitioners and the learned
counsel for the third respondent/employees.
7. The facts in the present case with regard to the appointment of the
employee/private respondents are not in dispute. The private respondents
made a claim petition before the original authority under the Payment of
Gratuity Act for payment of gratuity for the entire period, they worked
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W.P.(MD) No.4862 of 2020
under the petitioner management. The original authority as well as the
appellate authority concurrently held in favour of the employees and the
issue raised in these writ petitions are no longer res integra, which came up
for consideration before this Court in the writ petitions (supra) and the
relevant portion of the order are as follows:
“9.The second proviso to Sub-Section (2) of Section 4 of
the Payment of Gratuity Act, 1972, upon which much reliance
has been placed by the petitioner, speaks of establishment
which is seasonal in character. It deals with an employee who
is working in a seasonal establishment. Thus, it is crystal clear
that the establishment itself should be a seasonal one. In the
said Act, however, the term “establishment” has not been
defined. Taking the meaning of the term “establishment” from
other labour legislations, I have to state that the entire Tamil
Nadu Civil Supplies Corporation is an establishment. In other
words, the term “employer” refers to the Tamil Nadu Civil
Supplies Corporation, and therefore, it is an establishment. It is
not as though the employees were employed by the Direct
Purchase Centres. They are all Centres run by the Tamil Nadu
Civil Supplies Corporation, and the employees were employed
not by Direct Purchase Centres but by the Tamil Nadu Civil
Supplies Corporation itself. Therefore, the Tamil Nadu Civil
Supplies Corporation, as a single unit, is an establishment
which undoubtedly, is not a seasonal establishment. The
proviso to Sub-Section (2) of Section 4 does not refer to
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seasonal employment of an employee. A plain reading of the
said proviso goes to show that it refers only to seasonal
establishment. Therefore, it is not the character of employee
but it is the character of the establishment itself, which is
relevant. Here, in this case, the character of the establishment is
not seasonal, and therefore, the said proviso is not applicable to
Tamil Nadu Civil Supplies Corporation.
10.The learned counsel for the petitioner would contend
that apart from the above clause, viz. seasonal establishment,
there is also another requirement in the said Proviso which
states that “and who is not so employed throughout the year”.
Referring to this, the learned counsel for the petitioner would
contend that employees were not admittedly employed
throughout the year and thus according to the learned counsel,
the employees would fall within this phrase and thus the
proviso is applicable. This argument, though attractive, does
not persuade me for many reasons.
11.First of all, if one carefully looks into the Proviso, it
is crystal clear that it is not stated as though an employee who
is employed in a seasonal establishment OR who is not so
employed throughout the year. The word used between the two
clauses is a conjunction, viz. “and”. The word used is not “or”
which is disjunctive in nature. If the word “or” has been used,
then, irrespective of the fact whether the establishment is
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seasonal or permanent, if the employee has not worked
throughout the year, he will be entitled only for gratuity at the
rate of 7 days for each season as the Proviso would be
applicable. Obviously, the Legislature did not use the
disjunction “or”. Instead, the Legislature has consciously used
the word “and”. Thus it is the intention of the Legislature to
bring those employees who are the employees of an
establishment which is seasonal and further those employees
who have not worked throughout the year, within the ambit of
this Proviso. Here in this case, the establishment cannot be
stated to be seasonal, even though it may be the case that
employees did not work throughout the year. In such view of
the matter, I hold that the second Proviso to Sub-Section (2) of
Section 4 of the Act, is not at all applicable to the employees of
Tamil Nadu Civil Supplies Corporation, who have worked in
the Direct Purchase Centres.
12.But the learned counsel for the petitioner-Corporation
would make much reliance on the judgment of the Division
Bench of this Court in Tamil Nadu Civil Supplies Corporation
Workers Union v. Tamil Nadu Civil Supplies Corporation,
cited supra. That was a case where the Trade Union filed the
writ petition seeking the relief of permanent status for the
employees of the Tamil Nadu Civil Supplies Corporation as per
the provisions of the Tamil Nadu Industrial Establishment
(Conferment of Permanent Status to Workmen) Act, 1981. The
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Division Bench referred to the relevant provision of the said
Act, viz. Sub-Section (3) of Section 1, which reads as follows:
“It applies to every Industrial Establishment (not being an
establishment of a seasonal character or in which work is
performed only intermittently) in which not less than 50
workmen were employed on any day of the preceding twelve
months. If any question arises whether an Industrial
establishment is of a seasonal character or whether work is
performed therein only intermittently the decision of the
Government thereon shall be final. (Emphasis supplied)
Provided that the Government may, by notification, apply the
provisions of this Act to any Industrial Establishment
employing such number of workmen less than fifty as may be
specified in the Notification.”
13.Referring to the said provision, the Division Bench
took the view that the Bill Clerks, Helpers and Watchmen who
are employees only on seasonal basis, are not entitled for the
benefit of the said Act. In this context, we should note that the
word used is not conjunctive “and”, instead the word used is
disjunctive “or”. So far as this Act is concerned, if the
establishment is seasonal in character, any employee who is
employed in the said establishment is not entitled for the
benefit of the Act. Though the establishment may not be a
seasonal establishment, still if the work is performed
intermittently, in such a case also, the employee is not entitled
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for any permanent status. That is the reason why the
Legislature consciously used the word “or” between two
phrases. As I have already pointed out, in the Payment of
Gratuity Act, 1972, the word used is not “or”, but instead,
“and” is used. Therefore, I hold that the said decision cannot be
a precedent for deciding the issue involved in these writ
petitions, as the two provisions referred to above are drastically
different.
14.In view of all the above, I hold that the respondents 1
and 2 were right in holding that employees are entitled for
gratuity at the rate of 15% based on the rate of wages last
drawn by the employee concerned as per the second Proviso to
Sub-Section (2) of Section 4 of the Payment of Gratuity Act,
1972. I also hold that the second Proviso to Sub-Section (2) of
Section 4 of the Payment of Gratuity Act, 1972 is not at all
applicable to the employees of Tamil Nadu Civil Supplies
Corporation who have worked in Direct Purchase Centres.”
8. The said order was challenged before this Court in W.A Nos.352 to
357/2014, wherein, it is held as follows:
“3.The legal issue involved in these writ petitions is squarely
covered by the decision of this Court in W.P.No.4371 of 1998, dated
30.07.2008, which was confirmed by the Hon'ble Division Bench in
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W.A.No. 1282 of 2008, dated 19.07.2010. The operative portion of the
order, dated 30.07.2008, passed in W.P.No.4371 of 1998, reads as
follows:
“15.But in the present case, all the workers covered by the
impugned order were all Assistant Quality Inspectors, Watchmen, Packer,
Helper, Bill Clerk, etc. The procurement, storage and distribution are all
on going process and if they are really seasonal, there is no question of
the workmen being covered by the settlement or the Award as referred to
by the Management. On the contrary, in the present case, even as per the
admission of the learned counsel for the Management, who has given a
tabular statement showing that the number of the workmen taken against
the regular vacancy was 70.
16.Further, in the letter dated 02.4.1991 sent by the Chairman cum
Managing Director of the petitioner Management to the Joint
Commissioner of Labour over which a reference was made in the
impugned order. The Managing Director had written in page 3 as
follows:-
"Regarding payment of retaining allowance to the D.P.C. staff,
this cannot be compared to the seasonal industries like sugar industry.
This is not a seasonal industry and the Government have not declared it
so. We need not retain them when there is no procurement and as such no
retaining allowance need be paid."
Even as per the provisions of Permanent Status Act, if the petitioner
wants, they can move the Government to declare the DPC as seasonal
and they have not done so.
17.The argument that the settlement and the Award is binding
cannot be accepted because of the non-obstante clause found in Section
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3(1) of the I.D. Act. Originally, it did not cover a Settlement or an Award.
Therefore, if there was any settlement or Award between the employer
and the workmen, then the provisions of Tamil Nadu Act 46 of 1981 will
have no application. This was noticed by a Division Bench of this Court
in its judgment in Metal Powder Co. Ltd., Thirumangalam and another v.
The State of Tamil Nadu and another [1985 (2) L.L.J. 376] and after
referring to the similar provisions in other Labour enactments in
paragraph 27, it was observed as follows:-
Para 27: ".... We are bound to take notice of the legislative
practice that where the intention of the legislature is that a law is to have
effect notwithstanding any award, agreement or contract of service, such
an intention is expressed in clear and unambiguous words. Consequently,
in the absence of reference to an award, an agreement or a contract of
service in S.3(1) and restricting the operation of the non-obstante clause
in S.3(1) only to "anything contained in any law for the time being in
force", we must accept the contention of the learned counsel for the
petitioner that S.3 will not supersede a settlement between the employer
and the employees in so far as the subject matter of the settlement is
conferment of permanent status to the workmen...."
Taking note of the above judgment, the State Legislature amended
Section 3(1) of the Tamil Nadu Act 46 of 1981 and the words 'settlement'
and 'Award' have been included in the Explanation to Section 3(1) of the
Act.
18.In fact, when the amended provisions were challenged before
the Supreme Court, the Act was held to be intravires of the Constitution
by the Supreme Court in State of Tamil Nadu and others v. Nellai Cotton
Mills Ltd. and others [1990 (2) SCC 518]. Therefore, the objections
based on the Award and settlement by the learned counsel for the
Management must necessarily fail.
19.Thereafter, Mr. Ajay Khose, learned counsel appearing for the
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workmen brought to the notice of this Court a judgment of this Court in
Tamil Nadu Civil Supplies Corporation Modern Rice Mill Engineering
Section employes Union v. The Tamil Nadu Civil Supplies Corporation,
rep. by its Managing Director [1998 Writ L.R. 514] relating to the very
same Corporation. In that case, the petitioner Corporation gave a circular
regularising the casual workers working in the Modern Rice Mill and
gave their own date of regularisation. P.D. Dinakaran, J., in paragraphs 11
and 15 of the said judgment, held as follows:-
Para 11: "Section 3(1), being a non-obstante
provision, it prevails over any law for the time being in
force which includes any service rules, Government Orders
or government instructions. Therefore, want of sanctioned
posts as required under General service rules cannot take
away the rights conferred under Section 3(1) of the Act.
Similarly, Government Orders which require that the
appointments should be made only through Employment
Exchange also cannot be a ground to refuse the right
provided under section 3(1) of the to the petitioners if they
comply the requirements prescribed under Section 3(1).
Therefore, it is not open for the respondent to take shelter
under any other law in force much less any Government
Orders, Government Instructions to deny the benefits
conferred under Section 3(1) of the Act, to the petitioners,
if they satisfy the conditions prescribed therein, irrespective
of the availability of sanctioned posts or sponsorship from
Employment Exchange."
Para 15: "Therefore, the respondents are directed to
modify the proceedings dated 24.2.1989 to confer the
permanent status to individual workmen from the day on
which they satisfy the condition namely completing the
continuous service for period of 480 days in a period of 24
Calendar months in the respondent establishment. The
respondent shall pass appropriate orders as directed above
within 6 weeks from the date of receipt of a copy of this
order."
20.In the light of the above, the contentions raised by the
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petitioner Management will have to be necessarily rejected. In fact, the
petitioner Management themselves have regularised the workmen on a
posterior date. In the light of the above judgments of this Court and the
Supreme Court, such action cannot be countenanced by this Court. The
impugned order of the first respondent will have to be necessarily upheld.
Accordingly, the writ petition will stand dismissed. However, there will
be no order as to costs”.
4.In the light of the above, the issue is squarely covered by the
above referred decisions and therefore, the writ appeals fail and
accordingly, the same are dismissed, confirming the common order, dated
30.09.2013, made in W.P(MD)Nos.16007 to 16011 of 2013. No costs.
Consequently, connected Miscellaneous Petitions are dismissed.”
9. In view of the categorical pronouncement of the learned single
Judge as well as confirmed by the Division Bench, the relief sought in these
writ petitions for cannot be granted. Accordingly, these writ petitions are
dismissed. No costs. Consequently connected Miscellaneous Petitions are
closed.
20.01.2023
NCC : Yes/No
Index : Yes/No
RR
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W.P.(MD) No.4862 of 2020
To
1.The Appellate Authority under
the Payment of Gratuity Act/
The Joint Commissioner of Labour,
Office of the Joint commissioner of Labour,
Trichy.
2.The Controlling Authority Under
the Payment of Gratuity Act/
The Assistant Commissioner of Labour
Trichy.
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W.P.(MD) No.4862 of 2020
M.DHANDAPANI, J.
RR
W.P.(MD) Nos.4538 to 4544/2022, 5472/2020 and 8205/2020
20.01.2023
https://www.mhc.tn.gov.in/judis
